It’s worth noting that ATS is also used to sue individual people, not just corporations, but suing individual people isn’t an issue on Tuesday. For examples of those types of cases, seethis one against a former Somali General who moved to Virginia after torturing and killing people in Somalia, this one against the son of the former President of Liberia (who happens to be a U.S. citizen), and this one against a Paraguayan military officer who was living in New York and was the case that dusted off the ATS in 1980 and began this modern string of cases.
Now if you’re new to the world of corporate accountability and can’t believe a company would ever be directly involved in human rights abuses, I have one word for you: Chiquita. (And there’s not much question there since the company turned itself in. I know, I know, I said one word, but lawyers hate even self-imposed word limits!)
So what’s all the fuss about? Well, lawyers who represent the people whose human rights were violated say, “Of course corporations can be sued here in the U.S.! After all, corporations can do bad acts just like individual people can do bad acts, the companies are based here in the U.S., and the acts we’re talking about are so bad that nearly every nation in the world agrees they are wrong. Plus, many of the victims live in countries where the judicial systems are too weak or too corrupt to give the victims a real remedy.”
Lawyers who represent the corporations say, “Wait a minute – not so fast. These suits can hurt businesses with reputational damages as can the cost of defending a lawsuit. Plus, U.S. courts aren’t courts for the whole world; these cases should be brought in the country where the wrongs took place, especially where the main bad guy is a foreign government and the company is accused of assisting that government, but was simply doing business in a country with some unsavory characters and where doing business is pretty darn complicated.” Some note that they oppose human rights violations, but just don’t think this whole ATS law is the way to go about addressing them, warning that it could cause diplomatic friction for the U.S.
Is this sounding too abstract? Let’s take a look at the facts of this particular case: the plaintiffs are from Nigeria and they (or family members they represent) took part in protests in the mid-1990s against several companies from a variety of countries (including the U.K.and the Netherlands) who are part of the oil industry in Nigeria. The protests were against the harms people saw the oil extraction causing to the environment and the people living where these companies were operating in the Niger Delta. According to the plaintiffs, these companies asked the Nigerian government to use its military to clamp down on local protesters who opposed the companies’ activities. When the military responded, many protesters were injured, tortured, and/or killed. The plaintiffs say that because the acts that took place violate international law, they should be able to use to the ATS to sue those who had a role in the violence and have a connection to the U.S. court, namely, the corporations (i.e., trying to sue the Nigerian government in a U.S. court isn’t an issue here). The defendant companies respond that the norms of international law apply to nations, not corporations, and, even if those international norms do apply to corporations, applying them through the ATS could lead to conflicts in international affairs and make companies less competitive in the global market.
What’s a U.S.court to do?
It’s worth noting that in some cases, the court never needs to decide because the parties work it out for themselves, such as in the case against Yahoo! that settled in November 2007in which Chinese internet users used the ATS to sue the company after it handed over their names to the Chinese government (which doesn’t exactly have the best reputation for upholding free speech) and those internet users were jailed and tortured as a result.
But back to Kiobel – why are the Supremes taking this case? Well, unless you’re an only child, you’ll probably remember times that you and your siblings quibbled on long road trips until your parents turned to you in the backseat and hollered, “Don’t make me stop this car!” Well here, several of the eleven Courts of Appeals are the kids pulling pigtails and sticking out their tongues at each other – the Eleventh Circuit has said that corporations (likeDrummond) CAN be sued under the ATS, but then the Second Circuit came out with Kiobel saying, “Eleventh Circuit, you don’t know what you’re talking about.” And then the D.C. Circuit said, “Nuh-uh…” (Ok, ok, a bit more articulately: “contrary to [the view] of the Second Circuit, we join the Eleventh Circuit in holding that neither the text, history, nor purpose of the ATS supports corporate immunity for torts based on heinous conduct allegedly committed by its agents in violation of the law of nations.”) Then the Seventh Circuit chimed in with, “This is stupid, the ATS totally applies to corporations” in its decision regarding allegations against Firestone in Liberia. And, yes, I’m paraphrasing.
Then Chief Justice Roberts and his crew finally said, “ENOUGH! We’ll decide this!” Now in my family, the cooler rode in the backseat, putting us kids in charge of sandwich and snack distribution, so we knew any talk of discipline was an empty threat. But at least one Court of Appeals won’t be so lucky.
But here’s another wrinkle – Uncle Sam (his Administrative Branch) wanted a say, too, so filed what’s called an amicus (or “friend of the court”) brief. This brief, which was filed by the State Department Legal Adviser, Commerce General Counsel, and Solicitor General (read: the Aunt or Uncle that your parents often listen to but not always), weighed in on the side of the Nigerian plaintiffs, saying that corporations can be held liable under the ATS. According to this group, “[C]orporations have been subject to suit for centuries, and the concept of corporate liability is a well-settled part of our ‘legal culture.’” They look at “norms” under international law and say they don’t see any that keep corporations from being sued for violations of international law just like individual people can be. And if that weren’t enough voices, many other amicus groups weighed in, including the governments of Germany, the Netherlands, the U.K., professors of international law, and several others on both sides of this debate. (Aren’t you glad that sending huge stacks of paper for you to read isn’t a universal sign of friendship?)
So here we are. Lots of voices, lots of paper, lots of opinions, and lots of factors.
We’ll update you as the case unfolds – for now, grab your sleeping bag and coordinate with your friends as to who is bringing what ingredients for s’mores as you camp out Monday night – it promises to be a big day on Tuesday! (And if you can’t make it, you’ll have a chance to hear more this Wednesday at noon at Georgetown University Law School at an event sponsored by the International Corporate Accountability Roundtable and this Thursday at 8:30 am at Arnold & Porter LLP at an event sponsored by the Washington Foreign Law Society, with ASIL, and committees of the DC Bar and American Bar Association.)
Thoughts, comments or questions? Let us know – here on the blog or on our Facebook page.